International Law

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Caroline Test
“The necessity of self-defense [must be] instant, overwhelming, leaving no choice of means, and no moment of deliberation… [and] the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it.”
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The Two-Element Theory
Consistent conduct is not sufficient; there must also be opinio juris sive necessitatis “Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that th
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Opinio Juris
Can be difficult to identify States must have been shown to be acting under a belief that a customary rule already exists Consider the Caroline affair Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) ICJ, 2012 Kasiki
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Custom binds all states
This includes new States What if one or two States simply don’t agree? Fisheries case (United Kingdom v Norway) ICJ Reports, 1951
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The '10 Mile Rule' (from UK v Norway case)
UK argued there was a customary norm for calculating baselines for establishing depth of territorial waters – the 10 mile rule ICJ agreed, but “[it] would appear to be inapplicable as against Norway inasmuch as she has always opposed any attempt to a
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Persistent Objector Principle
If a State has always objected to a rule, including during its formation, it will not be bound by it Akin to ‘opting-out’ Attractive but somewhat controversial
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Card 2

Front

Consistent conduct is not sufficient; there must also be opinio juris sive necessitatis “Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that th

Back

The Two-Element Theory

Card 3

Front

Can be difficult to identify States must have been shown to be acting under a belief that a customary rule already exists Consider the Caroline affair Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) ICJ, 2012 Kasiki

Back

Preview of the back of card 3

Card 4

Front

This includes new States What if one or two States simply don’t agree? Fisheries case (United Kingdom v Norway) ICJ Reports, 1951

Back

Preview of the back of card 4

Card 5

Front

UK argued there was a customary norm for calculating baselines for establishing depth of territorial waters – the 10 mile rule ICJ agreed, but “[it] would appear to be inapplicable as against Norway inasmuch as she has always opposed any attempt to a

Back

Preview of the back of card 5
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